United States v. Vasquez , 242 F. App'x 177 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 25, 2007
Charles R. Fulbruge III
Clerk
No. 06-50662
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GUADALUPE VASQUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:05-CR-1011-ALL
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Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.
PER CURIAM:*
Jose Guadalupe Vasquez pleaded guilty to two counts of
transporting illegal aliens within the country and was sentenced to
concurrent 27-month terms of imprisonment, concurrent three-year
terms of supervised release, a $2000 fine, and a $200 special
assessment. Vasquez’s guidelines range of imprisonment was 10 to
16 months. The district court sentenced Vasquez in excess of the
guidelines range based, in part, on its finding that Vasquez’s
criminal history was underrepresented and based, in part, upon the
factors of 18 U.S.C. § 3553(a). The district court also admonished
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Vasquez that it was taking his “bad attitude” during his sentencing
hearing into consideration in selecting his sentence.
Vasquez argues that the district court abused its discretion
in sentencing him in excess of the advisory guidelines range, and
he characterizes his sentence as an upward departure. However, the
district court did not specifically state that it was upwardly
departing when it imposed Vasquez’s sentence or reference an
upward-departure provision under the Guidelines. Therefore, we
treat Vasquez’s sentence as a non-guidelines sentence. See United
States v. Armendariz, 451 F.3d 352, 358 n.5 (5th Cir. 2006).
Even if the district court’s finding that Vasquez’s criminal
history category underrepresented his criminal past was clearly
erroneous, Vasquez’s “sentence did not ‘result from’ any error in
applying the Guidelines or calculating the advisory range,” and we
therefore will not vacate his sentence. United States v. Davis,
478 F.3d 266, 273 (5th Cir. 2007) (emphasis added). The district
court also considered the § 3553(a) factors, particularly the need
for the sentence to promote respect for the law. Vasquez has not
demonstrated that the decision to sentence him in excess of the
advisory guidelines range was an abuse of discretion or that his
27-month sentence is unreasonable. The judgment of the district
court is AFFIRMED.
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